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From: Pat Valentino
Date: 2/2/01
Time: 12:15:43 AM
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DQ alpha process and as part of proficiency tests by the SID personnel to determine
if they were appropriately running the DQ alpha tests. Dr. Gerdes' testimony does
not and cannot have anything to do with the 'sampling' procedure followed by
Collin Yamauchi on June 14, 1994. In fact, since the DQ alpha results that Dr.
Gerdes examined were not actual case samples, but rather mock samples which had
been prepared in the SID lab for testing purposes, no 'evidence sampling' procedure
ever even took place in regard to the test samples that Dr. Gerdes reviewed."
Besides, Goldman added, Yamauchi did not testify that he spilled Simpson's
reference blood, as apparently anticipated by the defense opening statement, and
Yamauchi changed gloves between handlings of each item of evidence. Goldman
next argued a second independent reason that developed during trial why Gerdes's
testimony should be excluded as irrelevant. Simpson's admissions in response to
requests for admissions had been read to the jury. In those responses Simpson
admitted the results of the DNA tests.12 Thus, Goldman argued, "insofar as Dr.
Gerdes' testimony purports to establish that the DNA test results are unreliable
because they were affected by contamination within the SID laboratory during its
DQ alpha testing, that argument is completely undercut by defendant's response to
plaintiff's requests for admissions admitting the accuracy of these DQ alpha test
results." Goldman concluded the proposed Gerdes testimony was either "irrelevant
[or] unduly prejudicial under Evidence Code section 352."
12 The typical pattern of the requests for admissions was: "Admit that the blood
contained in the item identified [as evidence item x] had an HLA DQ Alpha blood type
1.1, 1.2." The responses were: "Admit." The responses had a preface: "As to the
following requests for admissions [the] defendant adopts the plaintiffs' definition as
communicated to the defendant a[t] that point in time when an item was tested by an
outside laboratory as opposed to the time of collection or any other point in time."
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In opposition to Goldman's motion, Simpson's counsel argued that Gerdes's
opinion as to the validation studies "is relevant to the weight of the results in this
case," and that Simpson's admissions meant only "those were the results they were
going to testify about, not that they were the correct results." He added that Gerdes
also would testify that in his opinion there was contamination in the results as to two
items of evidence in this case.
The trial court ruled Gerdes could testify about contamination in test results
relating to this case, but not the validation studies, basing its ruling "upon the
reasons stated by the plaintiff."
Whereas at the time of the pretrial in limine motion it appeared the proposed
testimony would be relevant to the weight of plaintiffs' scientific evidence,
subsequent events showed the testimony would have no probative value in light of
the way the case was actually being tried. (Hyatt v. Sierra Boat Co. (1978) 79
Cal.App.3d 325, 337-338.) Alternatively, the court could reasonably conclude the
probative value was minimal and in its discretion exclude the evidence under
Evidence Code section 352. (Id. at p. 338, fn. 7; see People v. Babbitt (1988) 45
Cal.3d 660, 681-682.)
JUROR MISCONDUCT
After the jury had been deliberating for two and one-half days during the
liability phase of the trial, the trial court received a letter stating that the daughter of
juror number 7 had worked for many years as a legal secretary in the Los Angeles
County District Attorney's Office and had a social relationship with Christopher
Darden, one of the prosecutors in the prior criminal trial. In the initial jury
questionnaire, juror number 7 had answered "No" to the question, "Have you or any
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close friends or relatives ever been employed by, or otherwise affiliated with any of
the law enforcement agencies listed above [which included District Attorney] or any
other law enforcement organization?" Upon questioning by the court the juror
stated she had inadvertently answered no while rushing to complete the
questionnaire, and that she should have answered yes and disclosed her daughter's
employer. The juror stated she had not met Christopher Darden.
Simpson moved for a mistrial on the ground the juror had concealed material
information on voir dire that if disclosed would have led the defense to peremptorily
excuse her. The trial court denied a mistrial but removed juror number 7 from the
jury on the ground her answer to a clear and unequivocal question on the
questionnaire omitted material information. The court then replaced her with an
alternate and instructed the jurors to disregard prior deliberations and begin their
deliberations anew. Thus the jury which rendered the verdict, after three days of
new deliberations, did not include the offending juror number 7.
Simpson contends the court should have granted a mistrial instead of simply
removing the juror. He bases this argument on nothing more than the legal rule that
a juror's concealment of material information on voir dire is serious misconduct
which raises a "presumption of prejudice." (Hasson v. Ford Motor Co. (1982) 32
Cal.3d 388, 416; In re Hitchings (1993) 6 Cal.4th 97, 119; People v. Blackwell
(1987) 191 Cal.App.3d 925, 929; People v. Diaz (1984) 152 Cal.App.3d 926, 934.)
Simpson did not contend nor produce any evidence, in either his motion for mistrial
or subsequent motion for a new trial, that juror number 7 communicated to the other
jurors any outside information or otherwise committed any deliberative misconduct.
He relies solely on the legal presumption of prejudice.
But the presumption of prejudice from juror misconduct "is not conclusive; it
may be rebutted by an affirmative evidentiary showing that prejudice does not exist
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or by a reviewing court's examination of the entire record to determine whether
there is a reasonable probability of actual harm to the complaining party resulting
from the misconduct." (Hasson v. Ford Motor Co., supra, 32 Cal.3d at p. 417.)
Our examination of the entire record shows there is no reasonable probability of
actual harm to Simpson, because the offending juror was removed and replaced by
an alternate, and the newly-constituted jury began deliberations anew before
rendering the verdict. The presumption of prejudice is rebutted by the fact of the
timely removal of the offending juror.
When juror misconduct is discovered before a verdict is reached, the trial
court has a choice among several remedies, one of which is to discharge the
offending juror and replace the juror with an alternate. (Code Civ. Proc., § 233;
Garden Grove School Dist. v. Hendler (1965) 63 Cal.2d 141, 145; Wegner,
Fairbank & Epstein, Cal. Practice Guide: Civil Trials and Evidence (The Rutter
Group 1999) ¶ 15:266, p. 15-46.) Ordinarily the less drastic remedy is preferable to
requiring a whole new trial; the remedy of mistrial is for those rare cases where the
trial court in its discretion concludes the misconduct of the juror has already caused
such irreparable harm that only a new trial can secure for the complaining party a
fair trial. (Wegner, Fairbank & Epstein, supra, ¶¶ 12:186, 12:189, 12:192, 15:265,
15:271, pp. 12-37, 12-38, 12-39, 15-46; 2 Cal. Trial Practice: Civil Procedure
During Trial (Cont.Ed.Bar 3d ed. 2000) § 17.26, p. 1059; Cal. Judges Benchbook:
Civil Trials (CJER 1981) Mistrials, § 10.4, p. 328; 7 Witkin, Cal. Procedure (4th ed.
1997) Trial, § 181, p. 208.) Simpson offers no reason or argument why the remedy
of removing the juror was not sufficient to remedy the harm in this particular case.
The trial court did not abuse its discretion in denying a mistrial.
In the cases cited by Simpson the offending juror had joined in rendering the
verdict. Here the offending juror was not included among the 12 jurors who
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rendered the verdict after being instructed to begin deliberations anew. In the
absence of any evidence that the offending juror's previous temporary participation
in deliberations tainted the other jurors, this record wholly rebuts the presumption of
prejudice on which Simpson relies. (See Glage v. Hawes Firearms Co. (1990) 226
Cal.App.3d 314, 323, fn. 5; People v. Dorsey (1995) 34 Cal.App.4th 694, 704.)
"[T]he showing of misconduct is rebutted by an examination of the record which
reveals no substantial likelihood that [Simpson] was given anything less than a full
and fair consideration of [his] case by an impartial jury." (Hasson v. Ford Motor
Co., supra, 32 Cal.3d 388, 417.)
COMPENSATORY DAMAGES FOR RUFO AND GOLDMAN
Sharon Rufo and Fredric Goldman, the parents of Ronald, were awarded
compensatory damages of $8.5 million on their action for wrongful death. The jury
rendered this award under proper instructions that for wrongful death the heirs are
entitled to reasonable compensation for the loss of love, companionship, comfort,
affection, society, solace, or moral support suffered as a result of the death, but not
for their grief or sorrow or for the decedent's pain and suffering. (Code Civ. Proc.,
§ 377.61; Krouse v. Graham (1977) 19 Cal.3d 59, 67-78; 6 Witkin, Summary of
Cal. Law (9th ed. 1988) Torts, § 1424, p. 904; BAJI No. 14.50.)13
Simpson contends the amount of $8.5 million is excessive, in other words that
the evidence concerning the parents' loss is insufficient to justify the jury's verdict
in such a large amount. He contends that Sharon Rufo's relationship with Ronald
13 Under the trial court's instructions the jury awarded one sum in the aggregate for the
present value of all losses suffered by both heirs. The amount was divided between
Sharon Rufo and Fredric Goldman pursuant to their stipulation.
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was not particularly close and affectionate, and even if Goldman's relationship with
Ronald was close and affectionate, it does not justify an award of $8.5 million for
the loss of comfort from an adult son who was living independently away from the
parental home at the time of death.
Simpson urged this point in a motion for new trial on the ground of excessive
damages, which the trial court considered and denied.
We have very narrow appellate review of the jury's determination of the
amount of compensation for the parents' loss of comfort and society. First, the
contention that the evidence does not support the verdict is reviewed under the
substantial evidence standard. In reviewing a claim of insufficiency of evidence, the
appellate court must consider the whole record, view the evidence in the light most
favorable to the judgment, presume every fact the trier of fact could reasonably
deduce from the evidence, and defer to the trier of fact's determination of the weight
and credibility of the evidence. (DiRosario v. Havens (1987) 196 Cal.App.3d 1224,
1240; Fagerquist v. Western Sun Aviation, Inc. (1987) 191 Cal.App.3d 709, 727.)
Second, the appellate court ordinarily defers to the trial court's denial of a motion
for new trial based on excessive damages, because of the trial judge's greater
familiarity with the case. (Bertero v. National General Corp. (1974) 13 Cal.3d 43,
64; Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1067.) The trial judge has
greater discretion to reduce the damages on a motion for new trial than the appellate
court has on appeal. If the trial judge denied the motion, concluding the award was
not excessive, the appellate court gives weight to the trial court's conclusion.
(Bertero v. National General Corp., supra, 13 Cal.3d at p. 64; Seffert v. Los
Angeles Transit Lines (1961) 56 Cal.2d 498, 506-507.) Third, the amount which
may compensate the loss of comfort and society is peculiarly within the discretion of
the jury. There is no fixed standard by which the appellate court can determine
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whether the jury's award for this intangible loss is excessive. The appellate court
usually defers to the jury's discretion in the absence of some other factor in the
record, such as inflammatory evidence, misleading instructions or improper
argument by counsel, that would suggest the jury relied upon improper
considerations. (Bertero v. National General Corp., supra, 13 Cal.3d at p. 64;
Fagerquist v. Western Sun Aviation, Inc., supra, 191 Cal.App.3d at pp. 728-729;
Wright v. City of Los Angeles (1990) 219 Cal.App.3d 318, 355-356.) The appellate
court will interfere with the jury's determination only when the award is so
disproportionate to the injuries suffered that it shocks the conscience and virtually
compels the conclusion the award is attributable to passion or prejudice.
(DiRosario v. Havens, supra, 196 Cal.App.3d 1224, 1241-1242.)
Here, Fredric Goldman testified about his close and affectionate relationship
with Ronald which continued to the time of the death. He testified they saw each
other often and Ronald attended family gatherings regularly, particularly enjoying
his role of big brother to his sister and extended family. As Simpson points out,
Sharon Rufo's relationship with Ronald was much less close and regular. She and
Fredric Goldman divorced in 1974 when Ronald was about six, and she shared child
visitation from 1976 to 1982; but then Fredric Goldman and the two children moved
to California from Illinois; she never saw Ronald again, had only two phone calls
from him and sent him two letters. The jury award, however, was in the aggregate
with no allocation between the father and mother. The award was for an intangible
loss peculiarly within the discretion of the jury to determine. Simpson points to no
other factor in the record to support the claim that the award must have been
produced by passion or prejudice. The trial court properly instructed the jury,
including specific advice that the jury must not consider the parents' grief or sorrow
or the decedent's pain and suffering. The legal presumption is the jury followed the
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instructions. The trial court did not believe the award to be excessive. Although the
verdict is very large, this alone does not compel the conclusion the award was
attributable to passion or prejudice. "That result which requires reversal should
clearly appear from the record. We are unable to say, as a matter of law, that the
judgment in this case is so excessive as to warrant us in interfering with the finding
of the jury." (DiRosario v. Havens, supra, 196 Cal.App.3d 1224, 1241-1242.)
Simpson's argument on appeal essentially comes down to this: the largest
award his counsel could find in California reported cases for the loss of comfort and
society in the wrongful death of an adult child was $2 million, citing Wright v. City
of Los Angeles, supra, 219 Cal.App.3d 318 (a 1990 appellate decision upholding a
1985 verdict of $2 million involving a 1979 death). This method of attacking a
verdict was disapproved by our Supreme Court in Bertero v. National General
Corp., supra, 13 Cal.3d 43, 65, footnote 12, where it said, "Defendants have
compiled a lengthy list of judgments awarding damages which have been reversed
on appeal as excessive. Those cases do not, in and of themselves, mandate a
reversal here. The vast variety of and disparity between awards in other cases
demonstrate that injuries can seldom be measured on the same scale. The measure
of damages suffered is a factual question and as such is a subject particularly within
the province of the trier of fact. For a reviewing court to upset a jury's factual
determination on the basis of what other juries awarded to other plaintiffs for other
injuries in other cases based upon different evidence would constitute a serious
invasion into the realm of factfinding. Thus, we adhere to the previously announced
and historically honored standard of reversing as excessive only those judgments
which the entire record, when viewed most favorably to the judgment, indicates
were rendered as the result of passion and prejudice on the part of the jurors. We
cannot conclude that the award of damages could be so characterized in the instant
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case." (Citations omitted; Wright v. City of Los Angeles, supra, 219 Cal.App.3d at
p. 356 [rejecting the defendant's citation of a different wrongful death verdict in
another case].)
PUNITIVE DAMAGES
The jury awarded punitive damages of $12.5 million to Ronald's estate and
$12.5 million to Nicole's estate. Punitive damages are awardable to the decedent's
estate in an action by the estate representative based on the cause of action the
decedent would have had if he or she had survived. (Code Civ. Proc., § 377.34.)
Relatively minor compensatory damages, such as here the decedents' clothing and
personal property damaged during the homicides, can be the springboard for
substantial punitive damages. (Garcia v. Superior Court (1996) 42 Cal.App.4th
177, 186.)14
Simpson contends the trial court erroneously admitted evidence of the present
value of projected income Simpson could earn on his name and likeness for the rest
of his life. Simpson also contends that, even taking this value into account, the
amount of punitive damages awarded was excessive as a matter of law. There is no
merit to these contentions.
14 Code of Civil Procedure section 377.34 provides, "In an action or proceeding by a
decedent's personal representative or successor in interest on the decedent's cause of
action, the damages recoverable are limited to the loss or damage that the decedent
sustained or incurred before death, including any penalties or punitive or exemplary
damages that the decedent would have been entitled to recover had the decedent lived,
and do not include damages for pain, suffering, or disfigurement."
Punitive damages are not awardable to the heirs on their own cause of action for
wrongful death. (Code Civ. Proc., § 377.61; Garcia v. Superior Court, supra, 42
Cal.App.4th at pp. 186-187 & fn. 7.)
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Factual Background
Plaintiffs presented two witnesses concerning the amount of punitive
damages. One was an expert on the marketing of celebrities' names and likenesses,
the other was a certified public accountant who evaluated Simpson's financial
condition.
Mark Roesler is chairman and chief executive officer of CMG Worldwide,
which is engaged in marketing and licensing for sports and entertainment
personalities and the estates of deceased personalities. He stated his firm is the
biggest company representing the estates of the famous personalities of the
twentieth century. His firm negotiates contracts that utilize the name or likeness of
the personality, running the gamut of ways to exploit them including appearances,
autographs, merchandising, book deals, and media uses. His firm also helps to
secure trademark protection and to prevent unauthorized uses of the celebrity's
name and likeness.
Roesler prepared a financial estimate of the income Simpson could earn for
the rest of his life from his name and likeness. He studied documentation including
trademarks Simpson had obtained or attempted to obtain, lawsuits Simpson had
filed to prevent unauthorized use of his name or likeness, the current market for
Simpson autographs, and contracts Simpson had entered since the date of the
killings. He considered seven areas of potential: autographs, merchandise or
memorabilia, endorsements, media, books and tapes, movies, and personal property
actually owned by Simpson. Roesler opined that by using his best efforts in all
these areas of potential exploitation, Simpson could earn $2 million to $3 million a
year for the rest of his life. Based on all the materials he reviewed, Roesler had no
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doubt that Simpson's name and likeness had a substantial value in the current
market of $2 million to $3 million a year. This was not an unusually large amount
for sports personalities, he opined, as there were already 20 living sports
personalities making at least that much income in those areas. In Roesler's opinion
$25 million was a reasonable amount that a reasonable person in Roesler's business
would pay in present dollars for the exclusive right to use Simpson's name and
likeness for the rest of Simpson's life. The trial court admitted Roesler's testimony
into evidence over Simpson's objection that it was not a proper element of net worth
for jury consideration on the issue of punitive damages.
Neill Freeman is a consultant and certified public accountant who has testified
numerous times as an expert accountant. He reviewed Roesler's report and
Roesler's opinion that Simpson could earn $2 million to $3 million a year for the
rest of his life exploiting his name and likeness. Based on Roesler's estimate,
Freeman calculated the present value of the exclusive right to exploit Simpson's
name and likeness for the rest of Simpson's life. Freeman found the present value
of that right to be just under $25 million. In Freeman's opinion as a forensic
accountant, it is proper to include this amount in a statement of Simpson's current
net worth. It "gives a complete picture of what the prospects or financial condition
of Mr. Simpson is."
Freeman also reviewed the documents provided by the defense in discovery
concerning Simpson's financial condition. In his opinion the defense versions of
financial statements of Simpson's net worth were incomplete and unsatisfactory in
various respects including failure to account for income, exaggeration of tax
liabilities, and discrepancies of millions of dollars between financial statements
made for the purpose of obtaining bank loans, and financial statements made for the
purpose of this litigation.
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Based on his review and corrections of the financial statements, Freeman
opined that Simpson's net worth at the time of trial was $15,703,529. Freeman's
estimate on the asset side included $24,880,568 for the present value of the
exclusive right to exploit Simpson's name and likeness, which was about 90 percent
of Freeman's estimate of assets. Liabilities brought his estimate of Simpson's net
worth down to the $15.7 million. This did not take into account the $8.5 million
that the jury had just awarded to Rufo and Goldman for compensatory damages,
which if subtracted would bring net worth down to $7,203,529.
Simpson presented four witnesses concerning punitive damages. These were
his business manager and his accountant, and two dealers in sports memorabilia.
Simpson attempted to show he had a negative net worth and had no viable prospects
for earnings in the future exploiting his celebrity.
Simpson's personal attorney, business attorney and business manager Leroy
Taft testified Simpson's net worth at the time of trial was a negative $856,000,
which would be a negative $9.356 million if the recent $8.5 million compensatory
damages were deducted. He testified that since the murders Simpson had basically
been selling assets to pay expenses. Taft testified that over the past year Taft had
vigorously attempted to market Simpson memorabilia and autographs, to secure
personal appearance contracts, to secure a book deal based on the criminal trial, and
to market a video, all without significant commercial success. In his opinion
Simpson was no longer marketable as a sports personality and his prospects for
obtaining any kind of contract were negligible. Furthermore, Simpson had never in
the past listed his name and likeness as an asset on a balance sheet.
Marvin Goodfriend is a certified public accountant who has worked 15 years
for Simpson. In his opinion Simpson had a negative net worth of $856,000, which
would be a negative $9.356 million after deducting the compensatory damages
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recently awarded. Goodfriend opined that he did not know if it was proper under
generally accepted accounting principles to include the present value of one's name
and likeness as an asset on a statement of net worth, but he believed it would be
speculative if there were no present contracts supporting an estimate of such income
in the future.
Simpson has two pension plans with a combined value of $4,121,000.
According to the evidence, these pension plans are exempt from execution by
creditors including plaintiffs as judgment creditors of a judgment awarding punitive
damages. In addition, Simpson has a pension from the NFL, which in 2002 will
begin paying him $1,910 per month; plaintiff's expert calculated its present value as
$175,592.
Two dealers in sports memorabilia testified for the defense. Bruce Fromong
is a full time employee of the California Department of Corrections but also is
self-employed as a dealer in sports memorabilia and part owner of a sports card
shop in Lincoln City, Oregon. He directed sales and marketing for Locker 32, a
company that deals primarily in Simpson memorabilia. During the criminal trial
there was a frenzy of demand for Simpson memorabilia, but a few months after the
criminal verdict this demand subsided. He testified that in the six months prior to
this trial (February 1997) he had sold only 10 pieces wholesale and four pieces
retail. At a recent trade show he could not find a single dealer interested in
purchasing Simpson memorabilia. Larry Levine is owner of a sports memorabilia
shop in Manhattan Beach, California. Prior to the killings the market for Simpson
memorabilia was very hot. After the criminal verdict it collapsed. He sold only one
autographed picture of Simpson in the year and a half prior to trial. He described
the current market as ice cold. Although Levine still has Simpson memorabilia in
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the storeroom of his shop, he no longer displays it due to negative reaction from his
customers.
Following the jury verdicts awarding punitive damages of $25 million,
Simpson moved for a new trial on the ground among others that the punitive
damages were excessive. The trial court denied the motion. It found the punitive
damages were not excessive in light of the reprehensibility of Simpson's conduct,
the harm suffered by the victims, credible evidence that Simpson had a reasonable
expectation of receiving millions of dollars with a present value of $25 million, and
Simpson's exempt assets.
General Principles Governing Punitive Damages
Our Supreme Court has summarized the fundamental principles of punitive
damages under California law. The purposes of punitive damages are to punish the
defendant and deter the commission of similar acts. (Civ. Code, § 3294, subd. (a)
["for the sake of example and by way of punishing the defendant"]; Neal v. Farmers
Ins. Exchange (1978) 21 Cal.3d 910, 928, fn. 13.) Three primary considerations
govern the amount of punitive damages: (1) the reprehensibility of the defendant's
conduct; (2) the injury suffered by the victims; and (3) the wealth of the defendant.
(Id. at pp. 928-929.) As to the wealth of the defendant, the function of deterrence
"will not be served if the wealth of the defendant allows him to absorb the award
with little or no discomfort"; conversely, "the function of punitive damages is not
served by an award which, in light of the defendant's wealth and the gravity of the
particular act, exceeds the level necessary to properly punish and deter." (Id. at
p. 928.)
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To enable an appellate court to review whether punitive damages are
excessive, the record must contain "evidence of the defendant's financial
condition." (Adams v. Murakami (1991) 54 Cal.3d 105, 110.) Because the
important question is whether the punitive damages will have the deterrent effect
without being excessive, an award that is reasonable in light of the first two factors,
reprehensibility of the defendant's conduct and injury to the victims, may
nevertheless "be so disproportionate to the defendant's ability to pay that the award
is excessive" for that reason alone. (Id. at p. 111.) "[T]he purpose of punitive
damages is not served by financially destroying a defendant. The purpose is to
deter, not to destroy." (Id. at p. 112.)
Admissibility of Roesler Testimony
Simpson contends the trial court should not have admitted Roesler's
testimony into evidence. Simpson contends Roesler's analysis was legally
"irrelevant" and for that reason was inadmissible. Simpson also criticizes the
testimony as "speculative." The first argument is wrong legally. The second
argument impermissibly attempts to have the appellate court reweigh the credibility
of conflicting evidence.
Simpson first contends that his ability to earn income in the future is
irrelevant and impermissible as a factor to be considered by the jury in assessing
punitive damages. He appears to contend that his wealth, financial condition, or
ability to pay punitive damages must be assessed solely upon whatever hard assets
he possessed at the time of trial, as shown by a net worth statement, with no regard
to future financial condition.